Gordon Campbell on the Royal Commission Pike River report

Gordon Campbell on the Royal Commission Pike
River report

by Gordon
Campbell

While Kate Wilkinson
has resigned as Labour Minister, it is clear from the Royal
Commission Pike River report that the contributing factors
were (a) rooted in legislative changes made 20 years ago,
and perpetuated under governments led by National
and Labour and (b) that New Zealand’s health and
safety problems in the workplace extend far beyond the
mining industry. That is why the crucial proposal in the
Royal Commission report is the setting up of a stand-alone
Crown entity that would be dedicated to improving health and
safety, across all industry sectors. So far, this has been
the only recommendation on which the Key government is
dragging its feet. The government wants more time to
consider the proposal.

It should announce a timeframe for
doing so. Otherwise, the Royal Commission’s main
recommendation risks being lost – no matter how welcome,
and how belated are the plans to re-introduce within the
mining industry a modicum of regulatory supervision and safe
practice. The fact this disaster occurred within the mining
industry however, is merely symptomatic of the wider problem
of lax practice in many workplaces across New Zealand.
Clearly, the Pike River management were the main culprits
for this particular disaster. Yet at yesterday’s
press conference, Prime Minister John Key appeared
willing to concede that the core problem was also
“systematic” in nature. “It’s the approach that’s
[been] happening. One is about quite a low touch, high trust
model, and the other is the much more prescriptive model. If
you look at what’s happened in Australia, they have
largely moved to a much more prescriptive, much more rigid
regime.”

That being the case, you would think the need
for sweeping change would be immediately embraced – yet to
date, Key has given little indication that the changes he is
setting in train will be systematic. Instead, they
seem focussed on shoring up the safety situation in mining,
and only in mining. How and when does Key propose to address
the pervasive “ low touch high trust” regulatory culture
that continues to kill and to injure workers in agriculture,
in forestry, in manufacturing via the unsafe use of
equipment, on quad bikes etc etc?

In that respect, the
government wanting more time to consider the need for a
stand-alone Crown agency dedicated to health and safety
sounds uncomfortably like the Pike River management wanting
more time to comply with the DoL request to build a second
egress from the mine. (The explosion on November 19, 2010
intervened before those vague promises could be met.)
Ultimately, the sea change needed in our health and safety
culture will depend on changing the priorities contained in
the Heath, Safety and Employment Act of 1992 – that put
the onus for health and safety onto the employer.
Unfortunately the Department of Labour then stepped back and
allowed the employers’ needs (for profit and competitive
advantage) to set the regulatory climate. Low touch, high
trust, and high rates of harm to workers became the
norm.

In the process, the Dol’s in house expertise and
institutional knowledge withered away. Unless and until that
situation is revisited, the changes will only be cosmetic.
One has to ask – is locating the DoL and its threadbare
workplace inspectorate within a super ministry that is
dedicated to lifting economic outputs likely to mean that
health and safety issues get treated as a top level priority
? Hardly. They are far more likely to be seen as a hindrance
to economic growth. Evidently, the Royal Commission realised
this danger. That’s why they felt that only a new, stand
alone Crown entity would create the independence and
generate the momentum needed for a fresh start.

Key is now
mulling over whether to follow the Royal Commission’s
advice, or to subvert it. To make an obvious point - the
business culture and regulatory mindset that has made our
workplace health and safety record among the worst in the
developed world needs to be understood, before it can be
fixed. Australian workers not only get paid more, on
average. New Zealand workers are also, on average, more at
risk of harm in the work place than their equivalents across
the Tasman. Both trends can be traced back to legislation
that was passed here in the early 1990s. Not for nothing did
New Zealand politicians at the time describe our main piece
of health and safety law (ie, the Health Safety and
Employment Act 1992) as being a “brother” piece of
legislation to the Employment Contracts Act.

The ECA
assisted employers to bypass union representation and cut
the short-term cost of labour. In similar fashion, the HSE
Act has sought to liberate employers from the former, more
intrusive system of centralised workplace inspection and
regulation, and to promote in its place a ‘safety
culture’ based largely on voluntary compliance. As a
consequence, there has also been a very relevant structural
change. As union membership lapsed, New Zealand work sites
began to atomise into a welter of contractors and
sub-contractors, each with their own alleged
responsibilities for a health and safety regime that tended
to exist more on paper than in practice. In the current
climate of price competition between independent
contractors, health and safety elements are usually among
the first budgeted items to get trimmed in order to win bids
for the work available – while at the other end of the
spectrum, the DoL’s inspection and enforcement regime has
been gradually drained of resources and technical expertise,
in line with the preference for “light handed”
regulation and largely voluntary compliance.

Thankfully,
the Pike River Royal Commission has heavily criticised this
‘light-handed’ regulatory culture that has prevailed
within Department of Labour for the past two decades. Not
only did the DoL scrap its mining inspectorate almost
entirely in the late 1990s, but the in-house technical
expertise that was relevant to a variety of health and
safety concerns has been allowed to deteriorate and/or be
outsourced.

The same thinking that produced the ECA shaped
the HSE Act. (To be precise, our HSE Act was heavily
influenced by the 1972 Robens Report in Britain, which was
the first major report to champion employer self regulation
of workplace safety. Essentially, our thinking on health and
safety is at least 40 years old!) The advocates of both
these pieces of early 1990s legislation have tended to
demonise centralised oversight and regulation (and
significant on-site union representation) as being obstacles
to the ability of business to increase productivity, reduce
labour costs and maximise efficiency and profit. To meet
those goals, New Zealand has paid a price in blood. To
address the current situation adequately, New Zealand not
only needs to jettison the ‘low touch, high trust” model
and to re-introduce regulatory oversight. We will also need
to retrain a whole new generation of inspectors, and rebuild
DoL’s lost expertise. Even with the best goodwill in the
world, it will take a generation to repair the damage done
by our neo-liberal experiment in workplace safety.

The
risks to health and safety that have gone hand in hand with
the atomisation of the workplace also need to be recognised.
The various attacks by the Key government on collective
bargaining – not to mention the changes made to the
employment law governing the film industry in the wake of
The Hobbit dispute two years ago – are making
proper health and safety provisions and oversight harder,
not easier, to put into practice. Until employment
legislation is automatically vetted for its health and
safety implications –which is something a stand-alone
Crown entity could be tasked with doing – this situation
will not change. We will continue to pass employment laws
that directly, and indirectly, endanger workers.

To be
fair, it should be acknowledged that some improvements were
made in the 2000s, and a few more resources were thrown at
the problem – a handful of extra inspectors here, a
“high hazard” DoL unit created there - but as the
diagram below shows, those changes were largely cosmetic and
they did not affect a trend line on workplace fatalities
that is markedly out of whack with other comparable
countries. (This graph is taken from page 14 of Safe Work
Australia’s Comparative Performance Monitoring Report.
Note how the trendline has been getting worse here, and
better elsewhere.)

Finally, the
incidence of fatalities is not the only measure of workplace
safety. The annual DoL figures do not include deaths in the
maritime or aviation sectors, nor fatalities due to
work-related road crashes. The DoL figures also do not
include the toll from occupational disease, which is
estimated to lead to 700-1,000 fatalities and 17,000- 20,000
new
and serious cases a year with asthma, skin diseases and
asbestos-related cancer being the major contributors.

The
role of work-related asbestos exposure in lung cancer deaths
– which are commonly attributed to smoking – may well be
significantly under- reported. According to the DoL health
and safety advisor Dr. Geraint Emrys, (Safeguard
magazine, May/June 2011) in comments about the 2010 National
Asbestos Medical Panel report : “The taking of lung cancer
history is still dominated by the smoking factor, and
occupational factors are down-played.” In Emrys’
estimation, the steep rise in recorded asbestos-related
cancers may not peak for another 20 to 30 years. (In the
wake of the Christchurch earthquake, both the initial
destruction to buildings and their subsequent demolition has
posed a fresh risk of asbestos exposure from wind-borne
particles.)

There are other ways of measuring the high
incidence of accidents and injury in the New Zealand work
place. During 2010, 187,300 New Zealanders lodged ACC claims
for work-related injuries, comprising 209,700 claims in all.
Just over 10% of these claims fell into the more serious
“entitlement claim” category, where compensation and
support goes beyond merely the re-imbursement of medical
fees. Agricultural and fisheries workers were the
occupational group with the highest injury incidence rate.
On the figures, a startling rate of almost one in four
farming and fishery workers were injured on the job in 2010,
as reflected in the incidence rate of 241 work-related
injury claims per 1,000 full-time equivalent employees.
Despite fewer ACC work related claims being lodged annually
since 2006, the cost of such claims has continued on a
steady rise. This is due either (or both) to a rise in
medical costs, or to an increase in the severity of the
accidents – along with the distinct possibility that the
number of ACC claims lodged may have dropped not because of
safety improvements, but in response to ACC raising the
hurdle of acceptance.

Besides the suffering behind these
dry figures, there is also an economic cost involved. In a
June 2011 publication, DoL estimated the cost of workplace
death and injury to be $16 billion (!) annually when direct
health and ACC claim costs are added to the costs of
rehabilitation and lost productivity and to the indirect
costs and suffering related to premature death.

Clearly
then, the systemic problem extends beyond Pike River, and
the mining industry. For that reason, so must the solutions.
At the very least, Key has to be held to a timetable for his
government’s pending decision about the establishment of a
stand-alone Crown entity to promote workplace
safety.

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